Court File and Parties

COURT FILE NO.: CV-22-00678911-0000 DATE: 2023-04-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

REGISTRAR, RETIREMENT HOMES REGULATORY AUTHORITY Applicant – and – WESLEY MOORE O/A THE VILLAGE MANOR RETIREMENT HOME AND O/A THE VILLAGE MANOR, AND ST. JACOBS CARPENTER HOUSE INC. O/A ST. JACOBS COUNTRY LIVING Respondents

Counsel: Jordan Glick and Jordan Stone, for the Applicant Edward L. D’Agostino, for the Respondents

HEARD: January 17, 2023

KOEHNEN J.

REASONS FOR JUDGMENT

OVERVIEW

[1] The Retirement Homes Regulatory Authority (“RHRA”) is the licensing body that has exclusive power to license and regulate retirement homes in Ontario. It brings this application for an order directing the Respondents to cease illegally operating a retirement home at 29 Albert Street, St. Jacobs Ontario (the “Premises”) and for an order directing the respondents to wind up their business.

[2] The respondents resist by contending that they do not fall within the definition of a retirement home under the governing statute, the Retirement Homes Act, 2010, S.O. 2010, c. 11 (the “Act”). That turns largely on whether the respondents “administered” drugs to residents at the Premises. I find that the respondents did administer drugs on the plain meaning of the term in the Act and on the respondent’s own definition of the term.

[3] An order closing the Premises is more appropriate than a limited compliance order. This is not a case of isolated inadvertence, carelessness, or of a legitimate difference of opinion about the meaning of the statute. Rather, it is a case of a deliberate, serial refusal to comply with the regulatory scheme of the Act. The conduct of the respondents amounts to a culture of avoidance rather than one of compliance. In those circumstances, the public interest is better served in ordering the Premises shut down. I therefore order that the Premises be vacated within 6 months. That time frame might also allow for the sale of the Premises to an arm’s length licenced provider and might allow residents to remain at the Premises but under the care of a licensed retirement home operator. In addition I grant ancillary relief related to the closure of the Premises as set out in the applicant’s notice of application.

I. Background

[4] The respondent Wesley Moore has been involved in the operation of a retirement home at the Premises since 2013.

[5] Although it was Mr. Moore’s former wife, Deborah Moore, who held the licence to operate the retirement home, Mr. Moore was its manager and de-facto operator.

[6] Mr. Moore became the sole owner of the Premises on April 21, 2017, after title was transferred to him by Ms. Moore as part of their separation. Ms. Moore moved out of the Premises in 2016 or 2017. Mr. Moore continued to live at the Premises and took control over the retirement home. On August 2, 2017, Mr. Moore registered “The Village Manor retirement home” as a business name and sole proprietorship for the Premises.

[7] On June 14, 2019, the Registrar of the RHRA issued a compliance order and an administrative penalty of $1,000 against Ms. Moore and The Village Manor. The RHRA issued these orders primarily due to the conduct of Mr. Moore as manager of The Village Manor, including his abuse of residents, confinement of residents, and interference with external care providers. The compliance order prohibited Mr. Moore from being involved in any capacity with residents and staff of The Village Manor other than as in his capacity as landlord.

[8] On January 17, 2020, the Registrar of the RHRA issued an order revoking Ms. Moore’s licence to operate a retirement home. The revocation order was made primarily due to the conduct of Mr. Moore, including the fact that he breached the compliance order on a continued basis.

[9] Ms. Moore appealed all three orders to the Licence Appeal Tribunal. She withdrew all three appeals on June 8, 2020.

[10] After the appeals were withdrawn, Mr. Moore began operating the Premises under the name “St. Jacobs Country Living”. The website for St. Jacobs Country Living includes the Premises as its address, contains a picture of the Premises and refers to itself on at least one occasion as “St. Jacobs Country Living (Formerly The Village Manor)”.

[11] On February 8, 2022, the RHRA investigators executed a judicial search warrant against the Premises. Based on the results of the search, the RHRA concluded that the Premises continued to be operated as a retirement home.

II. Are the Respondents Operating a retirement home?

[12] The respondents deny that they are operating a retirement home. The respondents filed an 81 page factum in which they raise a myriad of issues about the motivation and integrity of the applicant and certain of its employees. During oral argument, respondents’ counsel volunteered that the real issue comes down to whether the Premises meet the definition of a retirement home under the Act which in turn depends on whether the respondents provided for the “administration of a drug or other substance” at the Premises. I agree that the issue before me turns largely on that latter question.

[13] A “retirement home” is defined in section 2(1) of the Act to mean a residential complex or a part of a residential complex:

(a) that is occupied primarily by persons who are 65 years of age or older;

(b) that is occupied or intended to be occupied by at least six persons who are not related to the operators of the home; and

(c) where the operator of the home makes at least two care services available, directly or indirectly, to the residents.

It is undisputed that there are 24 residents at the Premises, 17 of whom are over 65.

[14] That then takes us to care services. For purposes of section 2(1) of the Act, “care services” are defined as:

(a) a prescribed health care service provided by a member of a College as defined in the Regulated Health Professions Act, 1991;

(b) administration of a drug, as defined in the Drug and Pharmacies Regulation Act, R.S.O. 1990, c. H.4, or another substance;

(c) assistance with feeding;

(d) assistance with bathing;

(e) continence care;

(f) assistance with dressing;

(g) assistance with personal hygiene;

(h) assistance with ambulation;

(i) provision of a meal; or

(j) any other service prescribed as a care service.

The most relevant of these for our purposes are (b), the administration of a drug or other substance, and (i), the provision of meals.

[15] It is undisputed that the respondents provide meals at the Premises. As a result, if the respondents provide a second service from the list above, the Premises would constitute a retirement home under the Act.

[16] The focus of this application is factor (b), the “administration of a drug, as defined in the Drug and Pharmacies Regulation Act, R.S.O. 1990, c. H.4, or another substance.”

III. Evidence about Administration of Drugs

[17] Let me turn first the evidence about how the Premises and its staff deal with drugs and other substances.

[18] Medications for numerous residents were kept in a locked medication cupboard that was only accessible by staff. It appears that after the respondents learned that the RHRA would be made aware of concerns about the Premises, they moved the medications from the locked cupboard into the residents’ rooms. The premises maintained a communications book in which staff recorded notes about their activities about various items, including their dealings with medications. An entry in that book dated January 20, 2022, states,

“We will be queuing medications now they are all back in their rooms except for LW hers is in the top medication cabinet.”

[19] Despite this note in the communications book, investigators found prescription medications for several residents in the locked cupboard when they executed the search warrant on February 8, 2022, including narcotic medications.

[20] Mr. Moore acknowledged on cross-examination that the Premises stores medications for residents.

[21] Mr. Moore also acknowledged that the Premises manages delivery and renewal of residents’ medications from their pharmacy. The staff communications book includes notations which record staff ordering medications for residents or otherwise contacting the resident’s pharmacy.

[22] In addition, the Premises maintained what it called a “medication administration record” for numerous residents. Medical administration records for the months of November 2021 to January 2022 were found during the execution of the search warrant.

[23] The medical administration records binder contains detailed instructions about how to receive, order, and return residents’ medications to their pharmacy.

[24] In addition, the medical administration records log the time of day that residents took their medication, which staff initialled. The bottom of the medical administration record includes a section that states “nurse’s signature”, which was signed by staff at the Premises who were not registered nurses. The medical administration records were kept for medications taken in numerous forms, including oral tablets, injections, creams, and ear drops. Staff were instructed in writing in respect of one patient to sign the medical administration record form because it was important to ensure that he did not miss any doses of his medication.

[25] Notations about medications were also recorded in the staff communications book.

[26] Moore acknowledged that the Premises records whether residents took their medications.

[27] Two former employees of the Premises delivered affidavits which explain that while they worked at the Premises they removed residents’ medications from a locked cupboard, brought the medication to the resident, dropped the medication into the resident’s hand, watched the resident take their medication, and signed the residents’ medication administration records to document that they had taken their medication.

[28] Mr. Moore acknowledged that staff at the Premises reminds residents to take their medications and provides updates to residents’ family members about whether residents took their medications.

[29] Notes contained in the medical administration records and the communications book include the following:

(a) “please make sure you are putting cream on WH abdominal area/downwards. Breakfast, lunch & bedtime.”

(b) “EN needs four drops in her left ear two times a day. Breakfast and supper.”

(c) “EN eardrops done”

(d) medications that were “given” or “handed out”;

(e) information about medication misses or refusals;

(f) “MM is still upset about his pills. He knew that the pill I gave him was melatonin though I did not say what it was.”

[30] In addition, there is ample evidence that several residents are unable to manage their own medications.

[31] The Premises’ assessment form for WH dated December 2021 and his medical records found on the Premises indicate that he has been diagnosed with paranoid schizophrenia, that his memory is impaired, and that he requires cueing to be oriented to time and place. When an investigator spoke with WH, he could not say what medications he took or when they should be taken. He appeared to the investigator to have cognitive issues.

[32] MH’s assessment form indicates that he moved into the Village Manor in September 2021 and that his cognitive status is “impaired”. Medical notes for MH from July 2021 indicate that he has a background of schizoaffective disorder and intellectual disability and that he was brought to the hospital from a retirement home after he was acting “bizarrely” and eating from the garbage. MH was unable to tell investigators what his medications were or when he took them.

[33] Residents LW and CB were also unable to name the medications they took. LW was unaware that she even took medications. When asked by investigators, CB advised that she did not know the name of her long-time roommate.

IV. Analysis

[34] The question for me to address is whether this evidence about the respondents’ conduct with respect to medications amounts to the administration of a drug or other substance.

[35] The Act does not define what amounts to the administration of drug or other substance.

[36] The RHRA submits that the Premises is engaged in the administration of a drug or other substance if it assumes any form of control or responsibility over a resident receiving drugs or substances, including ordering, storing, distributing, cueing residents to take, and maintaining records about the administration of, drugs or substances.

[37] The Respondents submit that administration of a drug or other substance refers only to staff physically inserting a drug or substance into a resident’s body.

[38] On my view of the evidence, the language of the statute, and the principles of statutory interpretation, the respondents have been providing the service of “administration of a drug, as defined in the Drug and Pharmacies Regulation Act, R.S.O. 1990, c. H.4, or another substance” as set out in s. 2(1)(b) of the Act.

[39] I start with the cardinal principle of statutory interpretation which was most recently summarized by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. That principle requires courts to read the words of a statute “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. …”

[40] The Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 went on to note that:

… Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose …

[41] As a result, when the legislature drafted the Act without defining “administration” of a drug, it expected courts to apply and define that expression with regard to the text, context and purpose of the Act.

[42] I begin with the grammatical sense of the words.

[43] The Act refers to the “administration of a drug, as defined in the Drug and Pharmacies Regulation Act, R.S.O. 1990, c. H.4 (“DPRA”), or another substance.” That somewhat cumbersome definition arises because “Drug” is defined in the DPRA to exclude many “substances”, including, but not limited to natural health products and substances included in various schedules to the DPRA and various National Drug Schedules. The upshot of that is that certain over-the-counter drugs like Acetaminophen and Ibuprofen do not fall within the definition of a “drug” under the DPRA but do fall within the definition of “another substance” in the Act.

[44] Most important for our purposes here is that there was no dispute that the medications that are referred to in the evidence above amount to drugs or “other substances” as defined in the DPRA. For ease of reference, instead of repeating the term drug or other substances throughout these reasons, I will simply refer to “drug”. When doing so I include “other substances” as referred to in the Act.

[45] What then amounts to administration of a drug? I start with the dictionary definition. The Oxford English Dictionary defines administer as:

1 manage and be responsible for the running of (a business, organization, etc.): each school was administered separately.▪ Be responsible for the implementation or use of (law or resources;): a Health and Safety agency would administer new regulations.

2 dispense or apply (a remedy or drug): paramedic crews are capable of administering drugs. ▪ deal out or inflict (punishment): retribution was administered to those found guilty.

[46] Two relevant meanings emerge from this definition. The first is assuming responsibility for something. The second is dispensing something to others.

[47] The evidence discloses that the respondents’ conduct in relation to drugs engaged both of these meanings. Staff of the Premises assumed responsibility for the management of the medications of numerous residents by ordering drugs from pharmacies, recording the delivery of drugs, and storing drugs. They also dispensed drugs to residents in the sense of taking drugs to patients and handing the patient the drug. Staff then assumed further responsibility by ensuring that residents took the drug and by recording that in writing. The conduct of staff in relation to drugs therefore clearly falls within the ordinary dictionary definition of “administration”.

[48] There do not appear to be any reported cases about the meaning of administration of drugs in the Act. The only case I was directed to is the unreported decision in [R. v. Lindo, unreported decision, January 24, 2019]. I agree with that interpretation.

[49] It would not make sense to adopt the narrower definition that the respondents advance for several reasons.

[50] First, if administration of a drug only included the narrow definition proposed by the Respondents, there would be no reason to include the administration of a drug in the Act as a care service at all. This is so because the definition of care services also includes in paragraph (j) “any other service prescribed as a care service.” The Regulation promulgated under the Act already include as a prescribed care service any service that a physician or nurse provides while engaged in the practice of medicine or nursing. The insertion of a drug into the body is a prescribed service that a nurse or physician provides while engaged in the practice of nursing or medicine. The Respondent’s definition would therefore offend the presumption against tautology which presumes “that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain.”

[51] Second, a purposive interpretation favours a broader interpretation. The Act is public protection legislation and should be interpreted broadly and purposively in a manner that is in keeping with protection of the public interest. Interpretations that lead to absurd results and/or undermine the regulator’s ability carry out its duties are inconsistent with this legislative intent and are to be avoided. Section 1 of the Act states that one of the fundamental principles in the interpretation of the Act and the Regulation is to ensure residents of a retirement home can live in security and safety.

[52] The purpose of the Act is to provide a higher level of regulation for businesses that provide services to more vulnerable individuals. The respondents’ interpretation of administering a drug or other substance would expose vulnerable individuals to danger.

[53] It is clear that many of the residents at the Premises had to be reminded when to take medications and what medications to take. Others had to be cued by staff about time and place. These are clearly vulnerable individuals who cannot manage medications themselves. Although they may be physically capable of inserting a tablet into their mouths, they would appear to be incapable of determining when to take what medications and in what dosage to take them. Those activities require a degree of management, control and record keeping that the respondents assumed.

[54] The unpurposive nature of the respondents’ interpretation can be seen when comparing two scenarios. Consider a first resident who has full cognition but has a physical disability that renders her unable to open a bottle or move her hand to her mouth. That resident can identify the necessary medication and dosage but requires staff to place the pill into her mouth. On the respondents’ definition, if that resident required an ibuprofen, staff would be administering a drug.

[55] Now consider a second patient with serious dementia and who is not oriented to time or place. He cannot recognize family or staff. He has no idea what medication he takes. He requires a heavy narcotic medication but cannot identify the medication or dosage. He is, however, readily able to put medication that staff gives him into his mouth. On the respondents’ definition, if staff gives the second patient the heavy narcotic, staff would not be administering a drug. Yet that patient clearly requires regulatory protection to live in security and safety and could not be left with uncontrolled access to narcotic medications.

[56] The third reason to reject the respondents, more limited definition of administering medication is that it contradicts the respondents’ own definition of the term.

[57] During his cross-examination, Mr. Moore described his understanding of administering a drug as follows:

In my layman's understanding because I don't operate a retirement home, I'm thinking administration would mean that I have to open pill bottles and take out certain portions of things and know when to give them and all that sort of thing. We don't do any of that.

[58] I agree with Mr. Moore’s layman’s understanding of administration of a drug. His understanding is also consistent with the dictionary definition of administration. Where I disagree with Mr. Moore is that his Premises does not “do any of that.” The evidence cited earlier demonstrates that staff at the Premises clearly do “open pill bottles and take out certain portions of things and know when to give them.”

[59] During argument, the respondents submitted that the answer quoted above was taken out of context. I have reviewed the questions surrounding this answer. On my reading of the transcript, the quotation is not taken out of context. The question arose out of a statement in Mr. Moore’s affidavit to the effect that the Premises is not involved in the administration of medication. Counsel asked Mr. Moore for his understanding of administering a drug. Mr. Moore answered as quoted above. The quotation above is not the complete answer. Mr. Moore continued as follows:

We have no involvement with any doctor's orders. All we have is a simple blister pack that some people ask if we can store it in a locked area so when they have visitors in rooms, people don't touch things and move things around. We've had many people in the rooms misplace things. This kept it in order for some people. We don't do it for all people. And we don't remind all people but we help people. It's hard to explain but we definitely don't administer from what I think administering is. And this is the first time I've ever seen anything like this. This means that the— She never showed me this.

[60] The additional information in the balance of Mr. Moore’s answer does not assist him. Indeed, if anything it further demonstrates the need for regulation. On Mr. Moore’s own explanation, the Premises kept medications under lock and key for certain patients because the Premises has “had many people in the rooms misplace things.” If residents are misplacing things to the point that they can no longer find or take medication without supervision, that is further evidence that the residents are subject to a degree of vulnerability that requires oversight and regulation.

[61] The reference at the end of Mr. Moore’s answer to the effect that he had never “seen anything like this” and that “she never showed me this” refers to a letter that Mr. Moore’s former wife sent to residents in the spring of 2020. That letter indicated that as of June 12, 2020 the Premises would no longer be licensed as a retirement home and that:

The Village Manor will be converting to an “independent living” facility offering ONLY accommodation and meals. With respect to administering medications, this can no longer be done at the Village Manor. This means that the independent living facility at Village Manor cannot assist you to take your medication, cannot store your medication and cannot even remind you to take your medication at the appropriate time.

[62] This provides further evidence of the need for a purposive interpretation of administering a drug. The message Ms. Moore was sending is that they are no longer a retirement home as defined under the Act but would be a strictly “independent living” facility that offered only meals. People capable of independent living do not need someone else to store, assist with or remind them to take medication.

[63] Moreover, the evidence shows that drugs were administered at the premises even in the narrower sense of applying them onto or inserting them into the body for which the respondents contend.

[64] The evidence cited above includes instances of patient WH who had to have cream applied to his/her abdomen downwards three times per day. That suggests staff is involved in the actual application of a substance to WH. It also suggests that WH is in a state of vulnerability. People who are able to care for themselves would probably prefer to apply medication of that sort to themselves rather than having a staff member at an institution do so. In addition, entries in the communications binder noted:

“EN needs four drops in her left ear two times a day. Breakfast and supper.

“EN eardrops done”

Those forms of expression suggest that a staff member is putting eardrops into the resident’s ear.

[65] In their defence, the respondents point to what they say is a textbook used at Conestoga College to train personal support workers, Sorrentino’s Canadian Textbook for the Support Worker, Fifth Edition, by Mary Wilk. That text suggests some ambiguity between the administration of medication which is not acceptable and assisting with medication which is acceptable.

[66] In my view, that text does not assist the respondents for three reasons.

[67] First, when the text speaks of administering or assisting with medication, it does so for the purpose of training personal support workers and defining what they are permitted to do. It is not defining the administration of medication for purposes of the definition in the Act. That distinction is significant because I would expect that many support workers would be working in retirement homes that do administer medication. As a result, the text is really a tool to help personal support workers draw the line between what they should or should not be doing as personal support workers. That has nothing to do with whether the facility in which they work is or is not a retirement home.

[68] Second, the text the respondents rely on is not helpful to them. The text draws a distinction between assisting with medications and administering medications. In this regard it says the following:

Assisting with medications involves helping clients self-administer medications. For example, you hand them their medications, or you open the bottles or packages for them. Such tasks are strictly a mechanical function; that is, you perform the functions clients would normally perform with their own hands and feet to obtain the medication.

Administering medications involves measuring medications or getting them into the person’s body, and it requires special judgement and knowledge. Clients and residents and facilities usually have medications administered to them, and some home care clients also need healthcare providers to administer their medications. However, administering medications is beyond your scope of practice….

[69] While the text is not necessarily crystal-clear, the critical distinction between assisting and administering is that assisting with medications involves “helping clients self administer medications.” In other words, it deals with clients who are capable of self administering medication but might need help opening a bottle because of impairments to manual dexterity. The suggestion in those cases is that the client is aware of the dosage and does not need the caregiver to measure out the dosage. By way of example, a person who may have limited manual dexterity can still be fully aware of the fact that they are required to take a particular medicine at a particular time of day and are aware of the specific dose that they are required to take. That person could ask a personal support worker to hand them two tablets of medication X on their bedside table with the resident being able to identify the medication and dosage. That is different from a resident who has difficulty remembering what medication to take, when to take it, and in what dosage to take it. In the latter case, a staff member who comes to the resident with the appropriate medication, at the appropriate time, in the appropriate dosage and directs the resident to take the medication that the staff member hands them, is in fact administering medication. Most critically, they are measuring the dosage and directing the patient who is otherwise incapable of remembering to take the medication or determine the dosage. They are as noted earlier, assuming a role in the management and control of the delivery of the medication.

[70] Third, the text is, strictly speaking, inadmissible. A text must be introduced through an expert witness who adopts the authority of the text. A text that is not adopted by an expert is inadmissible. This procedure was identified and confirmed in R. v. Marquard, [1993] 4 S.C.R. 223, as follows:

The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is "no", or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is "yes", and the witness acknowledges the work's authority, then the witness has confirmed it by the witness's own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case.

[71] That procedure was not followed here. No expert testified to the authority of the text the respondents cite.

[72] The respondents submit that there is a contradiction between requiring use of a textbook to be accompanied by the procedure set out in R. v. Marquard, [1993] 4 S.C.R. 223 but allowing use of dictionary definitions without such procedures. I see no contradiction in the two approaches. It is much easier for a court to recognize the authoritative nature of an English language dictionary than it is for the court to recognize the authoritative nature of a specialized textbook. By way of example, the Oxford English Dictionary is so broadly recognized as an authoritative English-language dictionary that courts can take judicial notice of its authority. Knowledge about more specialized texts and the degree of their authority is not so widespread as to allow courts to take judicial notice of their authority. Dictionaries are generally accepted to be sources that courts can refer to. That said, even dictionaries are merely a useful, objective, starting point. They provide a sense of the range of meanings of the word. They do not and cannot definitively establish the meaning of a statute. While the meanings of individual words are a component of statutory interpretation, so are context, the purpose of the statute and other cases that have interpreted statutory language.

[73] It also appears that the respondents provided other services under the Act that would bring them within the definition of a retirement home including helping with dressing, ambulation, and providing nursing services. In respect of the latter, investigators found a document at the Premises entitled “St. Jacobs Country Living Footcare Report & Progress Note” dated January 18, 2022. This document outlines footcare services provided to 12 residents by a nurse named Linda Jacobs during a clinic at the Premises. It also indicates that the next clinic will occur on March 1, 2022. The fact that the document is entitled “St. Jacobs Country Living” demonstrates that it was created after the Premises’ licence was revoked. Those would be services conducted in the practice of nursing which constitute a further service under the Act.

[74] The respondents tried to explain away these instances of further services. With respect to footcare, they note that an outside provider comes in to provide footcare often on a private retainer from the resident. The Act, however, speaks of providing services either directly or indirectly. The indirect provision of services is just as significant, or perhaps even more significant than the direct provision of services. Recall that the whole point of the Act is to protect people who are vulnerable. To allow the premises to house vulnerable people who require care, not have proper personnel in-house to provide care, have the families of the vulnerable contract private service providers, and then take the position that the Premises does not provide the service even indirectly, completely undermines Act. It would allow unlicensed operators to house highly vulnerable people and take the position that they provide them no services because whatever services they require are provided by privately retained service providers. If that argument succeeded, it would provide an easy way around the Act and hinder the Regulator’s ability to regulate or protect the vulnerable or shut down de facto retirement homes.

[75] With respect to ambulation, the respondents say that blind resident DA required assistance with ambulation on only a number of occasions after his room was changed and he had to become accustomed to navigating the Premises from his new room. That provides no answer to the applicant’s complaint. That simply explains why DA requires assistance with ambulation. Moreover, it does not address the evidence about the second resident who required assistance with ambulation, WH.

[76] The circumstances of RW are perhaps the most striking example of the respondents trying to explain things away. RW is a quadriplegic who requires many of the services that would make the Premises a retirement home. The respondents tried to take RW out of the equation by arguing that she lives in a separate part of the Premises and therefore does not qualify as part of the six people required to fall within the definition of a retirement home. The respondents take the position that RW lives in a part of the Premises that houses only her, as a result of which the services delivered to her are not to be considered when determining whether the Premises are a retirement home. According to Mr. Moore:

“When RW was moved from the Carpenter House to the Village Manor, the residential complex was thereafter comprised of two parts, one inside the Village Manor and the other outside of the Village Manor (on the porch). There have been two parts to the Village Manor residential complex since the Carpenter House closed.”

[77] I do not accept that this description satisfies the requirements for a legitimate separation of the Premises into one portion for RW and a second for the other residents. There is no explanation provided for the division of the Premises into two parts. The only one I can discern is an attempt to avoid the Act. RW lives in the same building, within the same walls and under the same roof as other residents of the Premises. The staff that see to her also see to other residents at the Premises. If the respondents’ argument were accepted, it would allow anyone running what is in fact a retirement home to take the position that it is not simply by separating every five residents with a door in the hallway.

[78] While there are no doubt circumstances where premises are legitimately divided into two or more sections, the way the example of RW has been described strikes me more as an attempt to avoid the Act than a division of the premises for legitimate operational or medical purposes.

[79] Next, the respondents submit that this proceeding is an abuse of process because the respondents also face a provincial offences charge for contravening the Act. The respondents submit that the abuse lies in the fact that they have the right to remain silent in the provincial offences proceeding but are required to respond in this civil proceeding or risk having adverse inferences drawn against them.

[80] In my view, the provincial offences charge creates no barrier to this proceeding. The Act specifically contemplates both civil orders and provincial offences. Section 96.1 of the Act allows the Registrar to apply to the Superior Court of Justice for a compliance order. Section 98 of the Act sets out potential provincial offences. Section 97 provides that an order made pursuant to section 96.1 does not affect the liability of the person to conviction for noncompliance. That wording contemplates a civil proceeding concluding before a provincial offences proceeding. The respondents have raised no constitutional issue in this regard and have not directed me to any cases to suggest that there is anything inappropriate in having the civil proceeding advance before the provincial offences proceeding.

[81] If the respondents are subject to prejudice by the order of proceedings, they had or have remedies. They could have moved to stay the civil proceeding. They never did so. They could have invoked the protections of the Evidence Act, R.S.O. 1990, c. E.23, s. 9. I have not been made aware of whether they have done so. They can also move before the Judge hearing the provincial offences matter to exclude the evidence of the respondents from this proceeding. It will be up to that judge to determine whether such a motion is possible and whether it should be granted on the merits.

[82] In light of the foregoing, I decline to accept the respondents’ definition of administering a drug for purposes of the Act. I do not think it would be advisable to purport to establish a definitive definition of the administration of a drug. In my view, however, it includes physically inserting a drug into a person’s body, applying it onto a patient’s body, assuming control over or responsibility for a person taking a drug, giving a drug to a person and directing them to ingest or apply it, and cueing a person to take a specific drug. There may well be other circumstances that are included within the term “administration of a drug.” In all cases the definition should be arrived at by applying a purposive definition of the term.

V. The Test For A Compliance Order

[83] Section 96.1 of the Act allows the Court, on application by the Registrar of the RHRA to make an order directing a person to comply with the Act or to make any order that the court thinks fit. Section 33 of the Act, provides that no one is permitted to operate a retirement home without a license to operate that specific home.

[84] Where a public authority seeks to enforce legislation, and a clear breach of the legislation is established, the Court may only decline to grant a compliance order in exceptional circumstances. The onus to demonstrate exceptional circumstances lies with the Respondents and the circumstances that would justify refusing a statutory injunction are limited. The respondents have not argued that there are any exceptional circumstances in this case. Although the respondents have referred to allegedly improper motivations and dishonesty on the part of the applicant, I do not accept those submissions. Whatever the history between Mr. Moore and the regulator might be, the evidence is clear that the Premises were consistently engaging in the administration of drugs without having a license to do so.

[85] Different considerations apply when the court considers a statutory injunction than when it considers a common law injunction. When considering a statutory injunction:

(a) The Court’s discretion is more fettered, and the factors considered by a court when considering equitable relief will have more limited application;

(b) An applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused;

(c) Proof of damages or proof of harm to the public is not an element of the legal test;

(d) There is no need for other enforcement remedies to have been pursued; and

(e) Although the court retains discretion in deciding whether to grant an injunction, hardship arising from a statutory injunction will generally not outweigh the public interest in having the law obeyed.

[86] The RHRA is not required to prove that residents have been harmed for a compliance order to be granted. It is no defence for a person unlawfully engaging in a licensed activity to claim their conduct has not caused harm or that they are as capable of performing the licensed activity as a licensee.

[87] One fundamental purpose of regulation is to prevent harm. It is not to stand idly by and intervene only after harm has occurred. One essential way of preventing harm is to restrict activities to licensed persons and to ensure that unlicensed persons do not engage in a licensed activity. Regulators have a duty to seek remedies against unauthorized persons who carry out a regulated activity.

[88] I am satisfied that the applicant has met the test for an order under the Act. The respondents have provided at least two services under the Act on a regular basis: meals and drug administration. Given the size of the Premises and the ages of its residents, that brings the Premises within the definition of Retirement Home under the Act.

VI. The Relief Requested

[89] Section 96.1 of the Act allows the court to make

… an order directing a person to comply with a provision of this Act or the regulations or an order made under this Act and, upon the application, the court may make any order that the court thinks fit.

[90] The applicant asks me to go beyond a compliance order an asks for an order that the premises be shut down as well as other ancillary relief contained in its Amended Notice of Application associated with the shutdown of the Premises.

[91] I am satisfied that the relief the applicant seeks should be granted.

[92] This is not a case of a careless or inadvertent breach of the Act. Nor is it a case of a legitimate difference of opinion about how to interpret the Act. This is a case of respondents who simply refuse to comply with the regulatory regime of the Act.

[93] This is evident in several respects. Mr. Moore has a history with the RHRA. It was his conduct that initially led the RHRA to withdraw the license associated with the Premises. Despite the revocation of that license, Mr. Moore has since continued to operate the Premises as a retirement home without a license.

[94] As noted earlier in these reasons, staff on the premises engaged in the very conduct that Mr. Moore described as amounting to the administration of a drug. There can be no issue about interpretation in those circumstances.

[95] I am additionally troubled by the transparent but disturbing attempts to avoid the Act by returning medications to residents’ rooms when the respondents learned the RHRA would be alerted to the practices at the Premises. This demonstrates that the respondents knew their conduct was contrary to the Act and that they tried to conceal that mis-conduct before the RHRA investigated.

[96] I am equally troubled by the unfounded “division” of the Premises into a “porch” to house a paraplegic resident whom Mr. Moore had to admit was receiving multiple services and the balance of the residence where Mr. Moore claimed residents were receiving no services apart from meals.

[97] Finally, the Premises continued to admit new residents who required assistance with medication even after its Retirement Home license was revoked.

[98] That history indicates a state of mind that is simply unwilling to respect and comply with a regulatory regime designed to protect the vulnerable.

[99] Mr. Moore was, or ought to have been, fully aware of the requirements of the Act and the prohibition on operating an unlicensed retirement home. As the manager of a licensed home for several years, he understood the requirements of the Act and the role of the RHRA. Mr. Moore owns and lives at the Premises. He is responsible for what occurs there, especially when it amounts to a consistent pattern of well-documented conduct.

[100] In these circumstances I must conclude that a compliance order would have no meaningful effect. The downside risk of merely issuing a compliance order is to expose vulnerable residents to further long term risk.

[101] This court has granted similar orders in the past.

[102] I grant the ancillary relief the applicant seeks and direct that the Premises be vacated within 6 months. That time frame might allow for the sale of the Premises to an arm’s length licenced provider and might allow residents to remain at the Premises but under the care of a licensed retirement home operator.

[103] The applicant seeks costs of $62,239.87 on a partial indemnity scale, including disbursements and HST. The respondents do not object to the quantum of the cost sought. The respondents’ costs amounted to $154,061.45 on a partial indemnity scale. They asked for costs to be fixed on a substantial indemnity scale at $227,000.

[104] I was given no reason for which costs should not follow the event. I am satisfied that the amount the applicant seeks for costs is reasonable, especially in light of the respondents’ own cost request. There were a total of 10 affidavits filed. They included significant documentary evidence. There were seven cross examinations over five days. The issues in the proceeding raised significant public interest concerns and had to be properly addressed. The applicant will be entitled to its costs fixed on a partial indemnity scale at $62,239.87 payable within 30 days.

Koehnen J.

Released: April 11, 2023